Is Biden’s new immigration rule doomed without more staffing?

The Biden administration is proposing a new policy that it said would more quickly screen out immigrant arrivals eligible to remain in the country, but observers and those tasked with carrying out the change have suggested it would place additional burdens on a system already operating above its capacity.  

The proposed rule would task asylum officers at U.S. Citizenship and Immigration Services with vetting migrants for public safety and national security concerns earlier in the process than currently takes place. Officers could deem migrants inadmissible during an initial “credible fear” screening interview—which typically occurs within days of a border crossing and while the individual is being detained—if they determine the applicants engaged in serious criminal activity, persecuted others or had terrorist involvement, among other factors. 

“The proposed rule we have published today is yet another step in our ongoing efforts to ensure the safety of the American public by more quickly identifying and removing those individuals who present a security risk and have no legal basis to remain here,” Homeland Security Department Secretary Alejandro Mayorkas said.

Asylum officers and immigration advocacy groups, however, are voicing concerns the change will have unintended consequences and bring new pressures on an already overstretched workforce. Making determinations on the statutory bars to entry in the asylum is a complex and burdensome process, which the groups warned could lead to improper decisions or fewer screenings altogether. 

Under the current system, potential asylees do not face the “mandatory bar” questions until a subsequent interview or when they face a judge in the Justice Department’s immigration court system. Front-loading that process and giving more discretion to asylum officers who will generally not have the opportunity to discuss the case with lawyers or review evidence, the American Immigration Council said, will add opacity to an already non-transparent system.

Given the relatively few asylum officers—both the White House and lawmakers in both parties recently tried to revamp USCIS by surging the agency with more staff—AIC predicted the rule would further strain an already overwhelmed operation. 

“This regulation would increase the risks of erroneous denials of asylum seekers while making the asylum process more inefficient and inconsistent,” AIC said. 

Michael Knowles, a long-time asylum officer, president of the American Federation of Government Employees local that represents USCIS employees in the Washington area and a spokesperson for the larger council, said that while the impact cannot be fully assessed until a final rule is issued and implementation guidance is distributed, his members are already questioning how realistic it is to take on more responsibilities during initial screenings.

The process is meant to function like a triaging, Knowles said, in which officers determine which immigrants can proceed to the next step and which are not likely to succeed and therefore should face expedited removal. The mandatory bar questions, on the other hand, typically require submissions of evidence and detailed reviews.  

“You’re asking us to do something that is very complex where the stakes are very high, in a screening situation where people are being held at temporary holding [centers],” Knowles said. “We’re under pressure to quickly make our screening determinations in 24 hours or 48 hours at the most. Now you’re adding more lines of inquiry. That’s inevitably going to mean a longer interview.”

The new rule follows one the Biden administration issued last year that required immigrants who entered U.S. territory after first traveling through another country to have either applied for asylum elsewhere during their travels, made an appointment at a port of entry through a DHS app or received parole through a limited program. Asylum officers, through their union, called that rule “contrary to the moral fabric of our nation” and said it amounted to a “stark reinterpretation” of their jobs. 

The rule required asylum officers to conduct a more complete adjudication of a migrant’s application, which the union similarly said would create substantial additional burdens on those personnel and make the process more time-consuming. 

Biden and a bipartisan coalition of senators recently sought to vastly increase the number of asylum offices, proposing as part of a larger package $4 billion for USCIS to hire more than 4,300 new staff for the positions. That would have more than quadrupled the asylum officers currently employed, but the bill foundered after former President Trump spoke out against it. 

Knowles and AIC noted the mandatory bars weed out very few people each year applying for asylum. Frontloading the questions, they said, will create additional operational hurdles to clear without materially addressing the number of migrants seeking asylum. 

“You’re creating a lot more work that’s not going to have a big impact,” Knowles said. 

AIC noted in the first half of fiscal 2024, DHS released far more detained migrants with a notice to appear before an immigration judge than those whom it screened with a credible fear interview. The department’s resources already cannot handle the volume of asylum seekers, the group said, particularly in periods like December 2023 when the number of illegal crossings surged to an all-time high. Since January, migrant encounters by Border Patrol have fallen significantly. 

DHS suggested the change would reduce the pressure on its resources, as the immigration courts—housed within Justice’s Executive Office of Immigration Review—are currently facing a backlog of more than 2 million cases. Rather than taking years for a case to wind through the system, DHS said asylum officers would be able to quickly flag those representing individuals clearly not eligible to remain in the U.S. It noted, however, that USCIS is still dealing with insufficient staffing. 

“The administration again calls on Congress to pass needed reforms and provide DHS the resources and tools it needs to fully implement expedited processing of all individuals encountered at the border,” the department said. 

Absent those resources, Knowles said, the new rule would create more pressure. 

“We’re already understaffed and you’re having to do more steps in the procedure, which could slow it down,” he said. 

Greg Chen, senior director of government relations for the American Immigration Lawyers Association, said in their first days of detention migrants typically do not have access to legal counsel or time to prepare their case or an appeal. 

“Ultimately to establish a fair and orderly process at the border,” Chen said, “Congress needs to provide the Department of Homeland Security with the resources to meet its mission and also ensure the truly vulnerable are not summarily denied protection without due process.”

AIC suggested DHS may be forced to simply screen fewer migrants crossing the border. 

“When the U.S. government adds additional components to a screening interview, it decreases the possibility that someone will pass, but it also forces the asylum officer to take longer conducting and adjudicating the interview,” the group said, which “may decrease the number of interviews officers can conduct on the margin.”